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The Minnesota Board on Judicial Standards publicly reprimanded a judge for using disparaging speech to refer to a defendant in court and then asking the courtroom gallery to weigh in on his own conduct and that of the defendant. Press Release (Spicer) (Minnesota Board on Judicial Standards February 5, 2009).

Accepting an agreed statement and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for repeatedly using her secretary for personal, non-governmental purposes and directing her secretary to check a confidential family court database for information about a defendant based on an ex parte request by her husband, an assistant district attorney. In the Matter of Ruhlmann, Determination (New York State Commission on Judicial Conduct February 9, 2009).

Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a part-time judge who (1) had significant delays in disposing of criminal cases attributable in large part to his failure to properly administer the court and supervise court staff, resulting in misplaced files, poor record-keeping, and poor case management; (2) in 6 cases, delayed reporting final dispositions to the state comptroller for from 8 months to 3 and a half years; and (3) failed to disqualify himself from a case in which the defendant was a friend and schoolmate of his daughter. In the Matter of O’Donnell, Determination (New York State Commission on Judicial Conduct February 5, 2009).

Accepting the recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court indefinitely suspended the license of a former judge for misappropriating funds from a humane society and impermissibly practicing law while a domestic relations court magistrate. Disciplinary Counsel v. Kelly, 901 N.E.2d 798 (Ohio 2009).

Based on the recommendation of a panel of the Commission on Judicial Conduct, the South Carolina Supreme Court publicly reprimanded a former judge for failing to meet continuing legal education obligations, to timely file the required annual CLE reports, and to petition the court for reinstatement following his suspension before resuming his judicial duties. In the Matter of Hall, 673 S.E.2d 429 (South Carolina 2009).

The Texas State Commission on Judicial Conduct publicly warned a judge for failing to conduct a trial prior to finding a traffic defendant guilty, changing the defendant’s plea from “not guilty” to “guilty,” and failing to enter a written judgment reflecting the decision in the case. Public Warning of James (Texas State Commission on Judicial Conduct February 12, 2009).

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A 2017 controversy about the death penalty in Arkansas resulted in cross judicial discipline complaints by a circuit court judge and the supreme court justices and other legal proceedings. In 2018, some of those cases were resolved although some remain pending for resolution in 2019. A timeline of the events follows.

2017

April 10Judge Wendell Griffen writes a blog post stating, in part, “[u]sing medications designed for treating illness and preserving life to engage in . . . premeditated and deliberate killing is not morally justifiable,” and referring to a series of executions that the state will carry out “[b]eginning a week from today, and three days after Good Friday—on Monday, April 17.”

April 14 (Good Friday)~ 2:00 p.m. — Judge Griffen participates in an anti-death penalty rally on the steps of the Arkansas Capitol.
4:22 p.m. — McKesson Medical-Surgical, Inc., a distributor of the drug vecuronium bromide, files a lawsuit and moves for a temporary restraining order to prevent the state from using its drug in scheduled executions.
4:37 p.m. — Judge Griffen grants the motion.
~5:30 p.m. — Judge Griffen attends a prayer vigil with his church outside the Governor’s mansion.

April 15The state attorney general files an emergency petition for a writ of mandamus with the Arkansas Supreme Court, seeking to vacate the TRO and remove Judge Griffen from the vecuronium bromide case.

April 17In an order, the Court immediately and permanently re-assigns all cases involving the death penalty or the state’s execution protocol, whether civil or criminal, that had been assigned to Judge Griffen and refers Judge Griffen to the Commission on Judicial Discipline & Disability.

April 27Judge Griffen files a complaint about the 7 justices of the Court with the Commission.

SeptemberJudge Griffen files a federal lawsuit alleging that the Court and the 7 individual justices, by entering the April 17th order, retaliated against him for his exercise of his First Amendment rights, violated the Arkansas Religious Freedom Restoration Act, denied his procedural due process rights, violated equal protection, and constituted a civil conspiracy.

2018April 12The federal district court denies the justices’ motions to dismiss Judge Griffen’s lawsuit, ruling that “the Court cannot state that Plaintiff has failed to state plausible claims for relief.” It does dismiss his claims against the Court itself as barred by sovereign immunity and held that the judge is “precluded from seeking injunctive relief against the individual Justices in their official capacities pursuant to Section 1983.”

April 13In discovery, Judge Griffen seeks from the justices all documents and communications regarding him, his conduct in death penalty cases, his religion or race, his public statements about the death penalty, his participation in anti-death penalty rallies, his “fitness or perceived fitness to serve as a judge,” his grant of the TRO, his potential impeachment, the request for his recusal, and the April 2017 order.

April 24The justices petition the U.S. Court of Appeals for the 8th Circuit for a writ of mandamus to vacate the district court’s order denying their motions to dismiss.

June 8In a statement of allegations, an investigative panel of the Commission on Judicial Discipline & Disability alleges that Judge Griffen committed misconduct by failing to disqualify himself from the vecuronium bromide case and making comments in opposition to the death penalty on his social and electronic media sites.

July 2Vacating the district court’s order, the 8th Circuit holds that Judge Griffen’s federal lawsuit fails to state any plausible claims for relief and remands the case to be dismissed. In re Kemp, 894 F.3d 900 (8th Circuit 2018).

August 20The Commission denies Judge Griffen’s motion to dismiss the statement of allegations.

August 29The 8th Circuit denies Judge Griffen’s motion for re-hearing and re-hearing en banc of its decision directing that his lawsuit be dismissed.

September 20In statements of allegations, an investigative panel of the Commission alleges that 6 of the 7 justices acted arbitrarily and capriciously by entering the April 2017 order.

November 22The Commission dismisses the statements of allegations filed against the 7 justices, finding that the April 2017 order was a legal conclusion or application of the law over which the Commission had no jurisdiction in the absence of allegations of fraud, corrupt motive, or bad faith.

November 27Judge Griffen files a petition for writ of certiorari with the U.S. Supreme Court from the 8th Circuit decision directing that his lawsuit be dismissed.

December 19The Arkansas Supreme Court, with special justices appointed by the governor after the justices disqualified themselves, finds that the justices’ petition for a writ is moot based on the Commission’s dismissal of the allegations against them.

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Pursuant to an agreement, the California Commission on Judicial Performance publicly admonished a judge for committing fraud during settlement negotiations in a suit in which he was party. Inquiry Concerning Blackwell, Decision & Order (California Commission on Judicial Performance February 23, 1999).

The California Commission on Judicial Performance publicly censured a judge for denying due process in a civil trial, argumentative questioning of a minor in a contempt proceeding, and labeling a lawyer “unethical and dishonest.” Inquiry Concerning Broadman, Decision & Order (California Commission on Judicial Performance February 26, 1999).

Affirming the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for mishandling an appeal before becoming a judge, back-dating the certificate of service on a brief, making serious and substantial falsehoods in a deposition she gave in the malpractice suit arising out of her mishandling of the appeal, overcharging her client and misrepresenting to her client how much work she performed on the appeal, depositing some of the cash payments from the client into her own operating account and spending the money rather than depositing it into a trust account, and failing to advise parties when an attorney who was representing her in the pending, personal civil litigation appeared before her. In re Ford-Kaus, 730 So. 2d 269 (Florida 1999).

Pursuant to the presentment filed by the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a retired judge for driving while intoxicated. In the Matter of D’Ambrosio, 723 A.2d 943 (New Jersey February 1999).

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A judge may participate, identified as a judge and wearing a robe, in a state agency video explaining successful truancy measures for juveniles. West Virginia Opinion 2018-19.

Judges must assume their attendance at a march, rally, or protest will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media, and consider whether their participation would appear to a reasonable person to undermine their independence, integrity, or impartiality or demean the judicial office, which is an objective standard. Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating. The same restrictions apply to judges’ personal staff, courtroom clerks, and court managers. Arizona Opinion 2018-6.

A judicial official may not act as a reference for a support enforcement officer who regularly testifies before him and is applying for a promotion Connecticut Informal Opinion 2018-17.

A judge may host a “meet & greet” in her home for the new dean of the Oklahoma City University law school if there will be no fund-raising. Oklahoma Opinion 2018-10.

A judge may serve on a committee that interviews applicants to his alma mater and recommend a student for admission as long as his title is not mentioned in the recommendation. Florida Opinion 2018-31.

A judicial official may not accept an award at a fund-raising dinner for a non-profit human relations organization that promotes inclusion and acceptance through education, advocacy, and building respectful and just communities. Connecticut Informal Opinion 2018-16.

A judge may accept a raffle prize valued at approximately $500 at a charity event hosted by the probation department, which regularly appears in her court. New York Opinion 2018-133.

A judge may not participate in an interview with a former juror writing a book about a case over which she presided when related proceedings remain pending or impending. New York Opinion 2018-134.

A judge may serve as a manager in a real estate investment limited liability company formed to manage his real estate investments and those of close family members but should avoid that role if other members could easily undertake the duties and may not serve if doing so would require frequent disqualification. North Carolina Formal Opinion 2018-1.

A judge may serve as an executor/administrator for a great nephew’s estate when they had a close family relationship and may receive the statutorily mandated compensation. West Virginia Opinion 2018-4.

A circuit court judge’s spouse may be the executive director of an organization that provides domestic violence victim advocacy services, including in proceedings before the circuit court, but they judge should not discuss with her the organization’s policies, activities, or clients or attend the organization’s events and should advise her not to promote or comment on their relationship in a job interview or any aspect of her duties. Wyoming Opinion 2018-2.

Judicial candidates must disavow third-party/PAC advertisements that contain statements that are false or misleading; that indicate the candidate would be biased in favor of or against an individual, group, or legal issue; or that do not accurately reflect the duties and role of a judge. West Virginia Opinion 2018-22.

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Accepting the findings of fact and legal conclusions of the Judicial Conduct Commission, the Arizona Supreme Court removed a judge from office for (1) reinstating charges brought by 2 of his friends against his election opponent and issuing a summons requiring the opponent to appear in his court; (2) after a private meeting with a defendant’s family and employer, telling the investigating police officer that he had strong reason to believe this was a case of mistaken identity; (3) issuing a criminal complaint against the wife of a married couple who owed him about $300 in unpaid rent, plus damages for breaching a lease for office space in a building owned by the judge; and (4) presiding over a landlord-tenant dispute in which the defendant had previously filed a criminal complaint against the judge, accusing him of fraudulently registering to vote in violation of state law. In re Peck, 867 P.2d 853 (Arizona 1994).

In a letter, the California Commission on Judicial Performance publicly reproved a judge for making improper and offensive remarks while presiding in cases and for abusive and demeaning language and behavior toward court staff. Letter to Judge Stevens (California Commission on Judicial Performance February 14, 1994).

Adopting the findings and recommendations of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge who sent a letter on his official court stationery to a federal judge as a character witness and reference on behalf of a defendant who had pled guilty in federal court. Inquiry Concerning Abel, 632 So. 2d 600 (Florida 1994).

Adopting the findings and conclusions of the Judicial Qualifications Commission, the Georgia Supreme Court publicly reprimanded a judge and ordered him suspended for 90 days without pay for (1) failing to process or dispose of citations filed by certain rangers of the Game and Fish Division of the state Department of Natural Resources; (2) stating that there were too many laws dealing with fish and game violations, that he did not agree with those laws, that he could not stand a particular DNR officer, and that he was not accountable to anyone; (3) dismissing citations without hearing evidence; (4) stating that he would not accept cases initiated by a particular DNR ranger; and (5) failing to forthrightly address the charges filed by the Commission. Inquiry Concerning Cannon, 440 S.E.2d 169 (Georgia 1994).

25 judges resigned or retired in lieu of discipline and agreed to never serve again pursuant to public agreements with conduct commissions.

1 judge agreed to resign and was publicly admonished.

11 judges were suspended without pay as a final sanction. 1 suspension was indefinite and included a public censure. The other suspensions ranged from 6 days to 3 years and included suspensions for 15 days, 30 days, 35 days (plus a public censure), 45 days (plus a public censure), 60 days, 3 months (plus a $1,000 fine), 6 months, and 180 days (to be reduced to 90 days if the judge agreed to conditions such a mentor and monthly reports on pending cases).

84 judges (or former judges in 11 cases) received public censures, reprimands, admonishments, or warnings. There were:

15 public censures (2 former judges were barred from serving in judicial office as well as censured; 1 censure included a $2,000 fine, 1 included an agreement not to run for re-election, and 3 included orders of additional education)

39 public reprimands (1 included a suspension without loss of compensation, 9 included additional conditions)

5 former judges were disbarred or their law licenses were suspended in attorney discipline proceedings for conduct while they were judges.

Approximately 57% of the sanctions were entered pursuant to an agreement. This count does not include pending recommendations or decisions pending on appeal, and “judge” refers generically to judicial officers, including justices, magistrates, commissioners, and hearing officers.

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The #MeToo movement to hold accountable people in authority (usually but not always men) for their sexual misconduct in the workplace began in October 2017 in Hollywood and has since spread to many other professions. That the theme of “Time’s Up” would apply to the judiciary was clear by December 2017, with the publication of allegations about Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. As Chief Justice Roberts wrote in his 2017 Year-End Report on the Federal Judiciary: “Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.”

* * *
Apparently but not expressly prompted by the Kozinski revelations, in his 2017 year-end report, Chief Justice Roberts announced creation of a working group to examine the federal judiciary’s practices for investigating and correcting sexual harassment in the workplace. The federal courts have assiduously kept the public informed of their progress:

September 13The U.S. Judicial Conference Committee on Codes of Conduct and Committee on Judicial Conduct and Disability publish for public comment proposed amendments to the Code of Conduct for U.S. Judges and to the Rules for Judicial-Conduct and Judicial-Disability Proceedings. The Judicial Conference also approves changes to the judiciary’s model employment dispute resolution plan to cover interns and externs and to extend the time for initiating complaints from 30 to 180 days.

December 31In his 2018 Year-End Report on the Federal Judiciary, Chief Justice Roberts provides an up-date on the working group’s efforts, endorses its recommendations, and explains that the proposals will be fine-tuned before the next meeting of the Judicial Conference in March 2019.

* * *With respect to state courts, on January 31, 2018, the Conference of Chief Justices adopted a resolution encouraging “the judicial branch of each state, territory, and the District of Columbia to establish and maintain policies: (1) to provide every judge and employee with training that addresses the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited by law; and (2) to establish procedures for recognizing and responding to harassment and harassment complaints.” Most states already had sexual discrimination and harassment policies, but some have recently adopted new or revised procedures or announced committees to make recommendations for up-dates. So far:

The Arizona Supreme Court adopted a new section on discrimination and harassment to the Code of Judicial Administration.

The Chief Justice of the California Supreme Court created an 8-member working “group to study and make recommendations for how the judicial branch can prevent and address harassment, discrimination, or inappropriate workplace conduct.”

In October, the National Center for State Courts created a “repository for resources to assist the state courts in developing or updating training, policies, and procedures” regarding workplace harassment.

* * *It is too early to tell whether the #MeToo movement will result in more judges being publicly disciplined for sexual harassment; even if there has been an increase in complaints about such conduct to conduct commissions since October 2017, many of those matters would still be in the confidential investigation phase, particularly if the allegations are extensive and disputed.

There were several resignations in 2018 that terminated investigations of workplace misconduct.

Based on a stipulation and the judge’s resignation and agreement not to serve in judicial office, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that a magistrate had inappropriate relationships with court employees and attorneys during court hours and on court property. In the Matter of Shoulders, Stipulation and agreement for resolution of investigation (Indiana Commission on Judicial Qualifications May 2, 2018).

According to the Omaha World-Herald, in February, a Nebraska Supreme Court justice resigned following a complaint to the Judicial Qualifications Commission; reportedly, the allegations were “in line with the national #MeToo movement,” and attorneys and former colleagues, including 2 women, told the newspaper that his judicial career “has been pocked with sexual comments to women.”

According to the Washington Post, the Maryland Commission on Judicial Disabilities told a former court administrative aide in January that it had decided to file charges based on her complaint that a trial judge had created a sexually charged work environment, but, in May, the Commission notified her that the charges were being “held in abeyance” in light of the judge’s announcement that he was retiring effective June 1.

Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a judge it had begun investigating after receiving a letter from the judge’s attorney about events described in an article in D Magazine entitled “Ardor in the Court” about the judge’s alleged affair with an attorney who was serving as counsel for one of the parties in a high value probate matters over which the judge was presiding. Peyton, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct January 26, 2018).

There were several judges publicly sanctioned for sexual misconduct in the workplace in 2018.

The Kansas Commission on Judicial Qualifications ordered a former judge to cease and desist from verbal and/or physical conduct that is offensive and demeaning to female court reporters and judges and to continue his retirement without seeking election or accepting appointment to any judicial office. Inquiry Concerning Yeoman, Order (Kansas Commission on Judicial Qualifications February 7, 2018).

Accepting the parties’ stipulation of facts, the Massachusetts Supreme Judicial Court indefinitely suspended a judge without pay and publicly censured him for his sexual relationship with a member of the drug court team; the Court also ordered that a copy of its order be delivered to the governor and the legislature. In re Estes, Order (Massachusetts Supreme Judicial Court May 24, 2018). The judge resigned after the decision.

The Texas State Commission on Judicial Conduct publicly reprimanded a judge for hiring a woman with whom he had an intimate relationship and making inappropriate comments to her during office hours, in addition to other misconduct. Public Reprimand of Jasso and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).

The Texas State Commission on Judicial Conduct publicly reprimanded a judge for inappropriately touching another judge and 2 court clerks at a social function and sending the other judge an offensive text message, in addition to other misconduct. Public Reprimand of Williams (Texas State Commission on Judicial Conduct December 14, 2018).

Based on a stipulation and agreement, the Washington State Commission publicly admonished a judge for responding “nine inches” after a female court clerk stated, “I have a question for you” to him after a court session. In re Kathren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

See also In re Complaint No. 05-18-90083, Memorandum (Judicial Council for the 5th Circuit November 9, 2018) () (finding that appropriate corrective action had been taken and concluding a proceeding against an unnamed magistrate judge for inappropriately pursuing social relationships with an attorney who practices before him and with a court employee).

There are currently several pending public judicial discipline proceedings with sexual misconduct allegations.

Based on a complaint by the Judicial Conduct Board, the Pennsylvania Court of Judicial Discipline has found that a judge committed misconduct by viewing images of naked and partially naked women while in his office, in addition to other misconduct. A hearing on sanctions will be scheduled.

Following a hearing, the Ohio Board of Professional Conduct has recommended that a court of appeals judge be indefinitely suspended for a pattern of inappropriate sexual comments and conduct with at least 2 members of his judicial staff in the workplace and outside of work, in addition to other misconduct.

In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a judge, in addition to other misconduct, engaged in a pattern of conduct towards a deputy public defender that was unwelcome, undignified, discourteous, and offensive and that would reasonably be perceived as sexual harassment or sexual discrimination, and made unwelcome, undignified, discourteous, and offensive comments, some of which would reasonably be perceived as sexual harassment or sexual discrimination, to and about other female attorneys who appeared before him and to and about other women who appeared or worked in his courtroom, including a court reporter and litigants.

In a notice of formal proceedings, the California Commission on Judicial Performance has alleged that a justice, in addition to other misconduct, engaged in a pattern of conduct that was unwelcome, undignified, discourteous, and offensive, and that would reasonably be perceived as sexual harassment or as bias or prejudice based on gender towards another justice on the court, California Highway Patrol officers assigned to the judicial protection section, court attorneys and other court personnel while on the California Court of Appeal and toward female court employees while a magistrate judge at the U.S. District Court for the Central District of California between 1999 and 2009.